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2009-UP-340 - State v. Wetherall

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Donald Thomas Wetherall, Appellant.


Appeal From Laurens County
J. Cordell Maddox, Jr., Circuit Court Judge


Unpublished Opinion No. 2009-UP-340
Submitted June 1, 2009 – Filed June 15, 2009   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, of Columbia, for Respondent.

PER CURIAM: Donald Thomas Wetherall appeals from a jury verdict finding him guilty of (1) assault with intent to commit first-degree criminal sexual conduct (ACSC) with a minor and (2) committing a lewd act upon a child.  Wetherall argues the circuit court erred in submitting the ACSC charge to the jury and in denying his request to present evidence of the victim's medical history.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. Regarding Wetherall's claim the circuit court erred in submitting the ACSC charge to the jury:  State v. Cribb, 310 S.C. 518, 523, 426 S.E.2d 306, 309 (1992) (internal citations omitted) ("A lesser included offense is one that requires no proof beyond that which is required for conviction of the greater offense.  The greater offense must include all the elements of the lesser."); State v. Sosbee, 371 S.C. 104, 109, 637 S.E.2d 571, 573 (Ct. App. 2006) ("An assault with intent to commit criminal sexual conduct with a minor in the first-degree is more aptly designated as an 'attempt' to commit criminal sexual conduct with a minor."); State v. Brock, 335 S.C. 267, 272, 516 S.E.2d 212, 214-15 (Ct. App. 1999) (stating the offense of ACSC first-degree with a minor requires the victim to be under the age of eleven, an assault to occur, and "the perpetrator must act with intent to commit a sexual battery").

2.  Regarding Wetherall's claim the circuit court erred in failing to allow him to present evidence of medical tests conducted on the victim two years after his alleged criminal acts:  State v. Brock, 335 S.C. 267, 272, 516 S.E.2d 212, 215 (Ct. App. 1999) (citing State v. Aiken, 322 S.C. 177, 470 S.E.2d 404 (Ct. App. 1996)) ("The admission or rejection of evidence is largely within the sound discretion of the trial judge, and the trial judge's decision will not be disturbed on appeal absent an abuse of discretion."); Rule 401, SCRE (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). 

AFFIRMED.[1]

HUFF, PIEPER, and GEATHERS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.